IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRADEEP NANDRAJOG, N.M. JAMDAR, JJ.
Zoru Darayus Bhathena - Appellant
Versus
Maharashtra State Road Development Corpn. Through Its Managing Director, Mumbai - Respondent
Public Interest Litigation (L) No. 120 of 2018
Decided On : 26-04-2019
Environment (Protection) Act, 1986 – Section 3 – Environment (Protection) Act, 1986 – Rule 5 – Temporary Yard Allotment – Maharashtra Coastal Zone Management Authority (MCZMA) accorded approval to establish a casting yard at Juhu Koliwada after the same had been accorded CRZ approval by the Ministry of Environment – Spread-over 5 Hectares on the beach, possession of 78,392.12 Sq. Mtr. was handed over by the District Collector to Maharashtra State Road Development Corporation. – The Minutes of the meeting of MCZMA lists the activities permitted at the casting yard. – The same are: (i) Site office; (ii) Labour rest room; (iii) RMC Plant and QC lab; (iv) Reinforcement fabrication yard; (v) Epoxy coating area; (vi) Segment stacking yard; (vii) Temporary Jetty for feeding the material and segments; and (viii) Diesel dispensing tank. – Writ petition, filed in public interest, questions the yard being established notwithstanding it being recorded in the permission as also the letter allotting the land to the respondent no.1 that the yard is a temporary yard. – Held, Petitioner has filed photographs of the preliminary activities commenced at the site of the casting yard and the same are at pages 95 to 98 of the paper-book. – Photographs show earth movers operating to complete the preliminary activity of earth-work and ground preparation. – The photographs evince soil filling and at the hearing, it was informed that the soil filling would be upto 1 meter depth; soil layers would be compacted. – On top of it, properly compacted layer of boulders will be provided and then PCC would be done to have a level surface. – The activities permitted by MCZMA, as noted above, authorize establishment of reinforcement and thus obviously permit earthwork and ground preparation by carrying out the operations as noted above. – End result of the operations would be to construct a structure akin to a platform – Of the 20 activities, which we have noted above, comprising the activities to develop a casting yard, area closing and grubbing followed by soil stabilization and ground improvement are embraced. – The casting of slabs would obviously require a hard ground surface and we see no escape from the common sense conclusion that the nature of the activities are akin to a building activity and the word building must be given a wider meaning to give effect to the purpose of the Regulations. – Notwithstanding it being stated that the yard would be a temporary yard, but the foot prints left by the yard after the machinery brought to site is removed and temporary structures are removed on completion of the work, would be of a permanent and lasting nature adversely impacting the coastal stretch in question. – It is well settled that words and phrases in a Legislation, which would include a legislative policy, must be given a meaning to further the object of the Legislation. – Site plan of the area shows that the land allotted for the temporary yard is on the seaward side of the sandy beach. – Court fail to see a road or a building towards the seaward side of the imaginary line. Meaning thereby the Regulation of building activity in CRZ-II, which permits building activities only on the landward side of the existing road or landward side of the existing authorised structures, is blatantly violated. – Whilst it may be true that Regulation 8 permits building in CRZ-II but the same is only on the landward side of the existing road or landward side of the existing structure. – It may also be true that clause (iv) of the Regulation 3 permits land reclamation and bunding for constructing sea-links and for facilities that are essential to the permissible activities, but that would not mean that pertaining to a sea-link, under the garb of ancillary activities land reclamation is permitted and that too on an area admeasuring 78,392.12 sq. mtrs. – Public Interest Petition Succeeds
PRADEEP NANDRAJOG, J.
1. A sea-link which would serve as an extension of the existing Bandra Worli sea-link, extending the same from Bandra to Versova, having length of 9.6 km. has been approved to be constructed.
2. On 26 February 2019 the Maharashtra Coastal Zone Management Authority (MCZMA) accorded approval to establish a casting yard at Juhu Koliwada after the same had been accorded CRZ approval by the Ministry of Environment. Spread-over 5 Hectares on the beach, possession of 78,392.12 Sq. Mtr. was handed over by the District Collector to Maharashtra State Road Development Corporation. The Minutes of the meeting dated 26 February 2019 of MCZMA lists the activities permitted at the casting yard. The same are: (i) Site office; (ii) Labour rest room; (iii) RMC Plant and QC lab; (iv) Reinforcement fabrication yard; (v) Epoxy coating area; (vi) Segment stacking yard; (vii) Temporary Jetty for feeding the material and segments; and (viii) Diesel dispensing tank.
3. The minutes record that the land is located in CRZI(i) and CRZ-(II), but subsequently, the same minutes record that activities permitted are restricted to CRZ-II area.
4. The writ petition, filed in public interest, questions the yard being established notwithstanding it being recorded in the permission as also the letter allotting the land to the respondent no.1 that the yard is a temporary yard.
5. Notwithstanding the prolix pleadings in the writ petition, at the hearing held on 22 and 23 April 2019, the scope was restricted to the CRZ-II areas as the permission is granted by the MCZMA on that basis.
6. The crux of the arguments of the learned Senior Counsel for the petitioner was that CRZ Notification dated 6 January 2011, as amended from time to time, lays emphasis on conservation and supervision of coastal stretches and restrictions, constructions, operations and processes in CRZ-II. Regulation 3 of the CRZ Regulation lists prohibited activities enumerated in clause (i) to clause (xiv) thereof. Clause (iv) prohibits land reclamation except when required for purposes set out in paragraphs (a) to (d) to clause (iv). Clause (xi) of Regulation 3 prohibits construction activities in CRZ-I except those specified in Regulation 8. The said Regulation stipulates norms for regulating permissible activities under Notification and qua CRZ-II permits building to be permitted only on the landward side of the existing roads or landward side of the existing structures. It was urged that the word 'building' must take colour from the word 'to construct'.
7. The response was that paragraph (iv) of Regulation 3 permits land reclamation except for purposes as per the paragraphs (a) to (d) thereof and paragraph (a) permits reclamation required for setting up sea-links and for other facilities that are essential for activities permissible under the Notification. It was urged by the respondents that the word 'building' in the Notification, not being defined, must be given its natural meaning i.e. cement brick structures permanently erected to be used for storage purposes or dwelling units.
8. In light of the rival contentions we proceed our journey by extracting the relevant portions of the CRZ Notification -2011 as amended from time to time.
9. The preamble to the Notification, inter alia, reads as under:
"Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government, with a view to ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, does hereby, declare the coastal stretches of the country and the water area upto
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